ALBUQUERQUE, NM -- Religious liberty suffered a setback in the U.S. but won a victory in Canada in December in two closely watched cases involving the legal tug-of-war between religious rights and "gay rights."
Both cases are seen by American conservative groups as indicators of what could be in the nation's future if laws protecting homosexuality continue to pass and if "gay marriage" spreads to all 50 states.
In the U.S. case, a New Mexico judge ruled that a husband- and wife-owned photography company violated state anti-discrimination laws when they refused to take pictures of a lesbian commitment ceremony. The ruling -- which is being appealed -- held up an earlier decision by the state's Human Rights Commission. If the ruling is not overturned the husband and wife will owe the lesbian couple more than $6,600 in attorneys' fees.
In Canada, an Alberta court found that Stephen Boissoin, a Baptist pastor at the time, did not violate the province's so-called hate speech laws when he wrote a 2002 letter to a local newspaper criticizing homosexuality and warning against the "homosexual agenda." The court's ruling reversed a decision by the Alberta Human Rights Commission, which had ordered him to pay $5,000 in fines and write a letter of apology to University of Calgary professor Darren Lund, who filed the original complaint. The money for Lund would have been for the "pain and suffering" he allegedly endured. Boissoin's case has been watched by free-speech advocates worldwide.
Attorneys allied with the Alliance Defense Fund, a Christian legal group, are involved in both cases.
"Christians and other people of faith should not be fined or jailed for expressing their political or religious beliefs," ADF-allied attorney Gerald Chipeur, who defended Boissoin in court, said in a statement. "There is no place for thought control in a free and democratic society."
The New Mexico case has been cited often in the state-by-state political and legal debate over "gay marriage" and even was referenced in Question 1 campaign commercials in Maine as evidence that laws supported by homosexual activists can negatively impact religious liberty. (Question 1 passed, overturning the state's "gay marriage" law.)
The case began innocently enough in 2006, when a lesbian woman e-mailed the photography studio, owned by Jon and Elaine Huguenin, asking about them possibly photographing a "same-gender ceremony." Elaine Huguenin e-mailed back saying they only worked at "traditional weddings" but thanked the woman for her interest.
The lesbian woman e-mailed again for clarification as to whether the company provided services to "same-sex couples," and Elaine Huguenin responded again by writing, "Yes, you are correct in saying we do not photograph same-sex weddings, but again, thanks for checking out our site!" The next day the lesbian woman's partner e-mailed Huguenin but did not disclose who she was and asked if Elaine would be available for what Huguenin presumed would be a traditional wedding. Huguenin said she would.
The couple hired a different photographer and held their ceremony, but Vanessa Willock, the lesbian woman who wrote the first e-mail, filed a complaint against the Huguenins with the New Mexico Human Rights Commission, alleging that the photography company's practice violated the state's Human Rights Act, which prohibits "discriminatory practice" in public accommodations based on, among other classes, "sexual orientation" and "gender identity."
The New Mexico Human Rights Commission ruled against the Huguenins in 2008, and state district court Judge Alan M. Malott held up the decision in his Dec. 11 ruling. He rejected the claims made by the Huguenins that working at a lesbian ceremony would violate their religious beliefs.
"The Court ... finds Plaintiff's policy discriminates, on its face, against gays and lesbians," Malott wrote. "... [A] sincerely held belief does not justify discrimination based upon sexual orientation under [state law]."
He further wrote, "This case is not an example of religious persecution. Plaintiff and its owner-operator is not being forced to participate in any ceremony or ritual; the only requirement is that she photograph the event. This is no different from the caterer or florist attending the ceremony in order to provide its commercial service; they attend it, not participate in it."
Even though New Mexico does not recognize "gay marriage," its laws protecting homosexuals are tougher than those in many states. The case, Christian attorneys say, is instructive to the rest of the country in what happens to religious freedom when homosexuality is protected in law.
"Christians in the marketplace should not be subject to predatory legal attacks for simply abiding by their beliefs," ADF Senior Counsel Jordan Lorence said in a statement. "The Constitution prohibits the state from forcing unwilling artists to promote a message they disagree with and thereby violate their conscience. Should the government force a videographer who is an animal rights activist to create a video promoting hunting and taxidermy? American small business owners do not surrender their constitutional rights at the marketplace gate, nor can the government make people choose between their faith and their livelihood."
The ruling is being appealed to the New Mexico Court of Appeals.
Boissoin, the Canadian man, wrote his letter to the editor in the local newspaper at a time when the country was embroiled in a debate over "gay marriage." (It is now legal across Canada.)
He wrote, in part, "From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by homosexual and pro-homosexual educators.... Think about it, children as young as five and six years of age are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system; all under the fraudulent guise of equal rights. Your children are being warped into believing that same-sex families are acceptable; that men kissing men is appropriate."
The letter was too much for the Alberta Human Rights Commission, which called Boissoin's acts "discrimination" and which said by fining him it hoped "to educate and hopefully prevent actions of this nature in [the] future." The commission said Boissoin's letter violated the province's Human Rights, Citizenship and Multiculturalism Act, which states that "no person shall publish ... or cause to be published" any statement that "is likely to expose a person or a class of persons to hatred or contempt." The law includes "sexual orientation" as a protected class.
But Justice Earl C. Wilson, of the Court of Queen's Bench of Alberta, ruled Dec. 3 that the commission's ruling violated the Canadian Charter of Rights and Freedoms -- Canada's bill of rights.
"In my view the Panel erred in its finding that the impugned letter was hateful and contemptuous of homosexuals," Wilson wrote.
Said Chipeur, who represented Boissoin, "The court found that Stephen Boissoin's letter to the editor did not amount to 'hate speech' and did not cause discriminatory behavior. Going forward, it will be extremely difficult for religious or political debate to be found in breach of Alberta's current human rights laws."